Monday, May 23, 2022

Third Circuit to NLRB: You can investigate complaints from random people... but take a joke!

Remember this one? The National Labor Relations Board (NLRB) concluded that an executive officer of The Federalist violated the National Labor Relations Act (NLRA) with the following joke tweet:

"FYI @fdrlst first one of you tries to unionize I swear I'll send you back to the salt mine." On Friday, the Third Circuit (my home circuit!) reversed in a precedential opinion in FDRLST Media, LLC v. NLRB

Notably, "the record does not show that any employee expressed concern over [the tweet's] message," but some guy named Joel Fleming in Massachusetts with no connection to the employer filed an unfair labor practice charge (apparently based on ideological opposition to the publication). The first part of the Court's ruling is important:

We reaffirm today that [the NLRA] places no limitations on who may file an actionable unfair labor practice charge. So the Board had statutory authority to address Fleming’s charge.

So, even though nobody with any connection to The Federalist (let alone an aggrieved party) filed a complaint - the NLRB could still pursue it. 

Not official use.
The Court went on to provide about 17 pages of analysis to conclude that the tweet seemed more like a joke about a recent current event (here, the Vox walkout that had just occurred) than an actual threat. The Court noted several contextual clues: the farcical nature of a "salt mines" reference, the forum (Twitter) and the fact that it was a personal tweet, the nature of The Federalist as a small employer that provides commentary on such issues, the subjective interpretation of the tweet by the employees, etc. 

Judge Matey authored an opinion concurring in the judgment that the tweet was not a violation of the NLRA, but parting ways with the majority on the jurisdictional issue:

[T]he National Labor Relations Act cabins charging authority to those who suffered some adverse effect in the workplace. Not, as here, someone who took offense to something seen while scrolling Twitter. As the filer was not aggrieved under the NLRA, the Board lacked jurisdiction to launch this case . . . . the best reading of the NLRA trims the NLRB’s jurisdiction and prevents unaffiliated parties from searching the internet for wisecracks to transform into workplace violations that unleash the NLRB’s sweeping power.

Fleming's response to this ruling seems to only confirm the problem: 

lulz. It took me less than fifteen minutes to file the charge and the action was litigated exclusively by the NLRB after that.
To him: "less than fifteen minutes." To The Federalist: Nearly three years of litigation. 

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